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PETITIONER:
SHRINIVAS KRISHNARAO KANGO
Vs.
RESPONDENT:
NARAYAN DEVJI KANGO AND OTHERS.
DATE OF JUDGMENT:
23/03/1954
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
MUKHERJEA, B.K.
HASAN, GHULAM
CITATION:
1954 AIR 379 1955 SCR 1
CITATOR INFO :
R 1955 SC 206 (13)
F 1959 SC 906 (10)
A 1962 SC 59 (5,10,11)RF 1970 SC1730 (3)
RF 1972 SC1401 (9,11)
R 1974 SC 878 (14,15)
R 1991 SC2176 (32)
ACT:
Hindu law-Joint family- Whether there is presumption that
property held by any member thereof is joint--Existence of
some nucleus-Burden of Proving self-acquisition-Property in
possession of a family from time immemorial-Presumption
whether it is ancestral-Adoption-Rights acquired by adoptive
son relating back to date of death of adoptive father-
Doctrine of relation back Whether applicable to estate of acollateral.
HEADNOTE:
It is well-settled that proof of the existence of a Hindu
joint family does not lead to the presumption that property
held by any member of the family is joint and the burden
rests upon any one asserting that any item of property was
joint to establish the fact. But where it is established
that the family possessed some joint property which from its
nature and relative value may have formed the nucleus from
which the property in question may have been acquired the
burden shifts to the party alleging self-acquisition toestablish affirmatively that the property was acquired
without. the aid of the joint family property.
Held, that on the facts the nucleus was not sufficient to
discharge the initial burden which lay on the plaintiff of
proving that the acquisitions were made with the aid of
joint family properties.
Held, further, that even if the burden shifted on the
defendants of establishing self acquisitions that had been
discharged by proof and the ancestral lands were intact and
the income derived therefrom must have been utilized for the
maintenance of the members of the family.
While it is not unusual for a family to hold properties for
generations without a title deed, an acquisition by a member
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would ordinarily be evidenced by a dead. When, therefore, a
property is found to have been in the possession of a family
from time immemorial, it is not unreasonable to presume that
it is ancestral and to throw the burden on the party
pleading self-acquisition to establish it.
On adoption by the Hindu widow, the adopted son acquires
all the rights of an aurasa son and those rights relate back
to the date of the death of the adoptive father.
The ground on which an adopted son is held entitled to take
in defeasance of the rights acquired prior to his adoption
is that in
2
the eye of law his adoption relates back, by a legal
fiction, to the date of the death of his adoptive father, he
being put in the position of a posthumous son.
These principles, however, apply only when the claim of the
adopted son relates to the estate of the adoptive father.
But where succession to the properties of a person other
than an adoptive father is involved the principle applicable
is not the rule of relation back but the rule that
inheritance once vested could not be divested.
The decision to the contrary in Anant Bhikappa Patil (Minor)
v. Shankar Ramchandra Patil (70 I.A. 232) dissented from.
Appalaswami v. Suryanarayanamurti (I.L.R. 1948 Mad. 440 at447, 448); Babubhai Girdharal v. Ujamlal Hargovandas (I.L.R.
1937 Bom. 708); Venka taramayya v. Seshamma (I.L.R. 1937
Madras 1012); Vythianatha v. Varadaraja (I.L.R 1938 Madras
696); Pratapsing Shivsing v. Agarsingii Raisingji (46 I.A.
97 at 107); Vellanki Venkata v. Venkatarama (4 I.A. 1);
Verabhai v. Bhai Hiraba (30 I.A. 234)- Chandra v. Goiarbai
(I.L.R. 14 Bom. 463); Amarendra Mansingh v. Sanatan Singh
(60 I.A. 242) ; Balu Sakharam v. Lehoo Sambhaji (I.L. R.
1937 Bom 508); Neelangouda Limbangouda v. Ujjan Gowda
(A.I.R. 1948 P.C. 165; 50 Bom. L.R. 682); Bhubaneswari Debi
v. Nilkomul Lahiri (12 I.A. 137): Kally Prosonno Ghose v.
Gocool Chunder Mitter (I.L.R. 2 Cal. 293); Nilkomul Lahuri
v. Jotendro Mohan Lahuri (I.L.R. 7 Cal. 178); Raghunandha v.
Brozo Kishoro. (3 I. A. 154); Bachoo Hurkisondas v.Mankorebai (34 I.A. 107); Vijaysingji Chhatrasingji v.
Shivasangji Bhimasangji (62 I.A. 161); Kalidas v.
Krishnachandra Das (2 B.L.R. 103 F.B.) referred to. Tivaji
Annaji v. Hanmant Ramchandra (I.L.R. 1950 Bombay 510)
approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 164 of 1952.
Appeal from the Judgment and Decree dated the 12th August,
1949, of the High Court of Judicature at Bombay in Appeals
Nos. 63 and 148 of 1947, from Original Decree, arising out
of the Decree dated the 31st July, 1946, of the Court of theCivil Judge, Senior Division, Bijapur, at Bijapur in Special
Civil- Suit No. 28 of 1945.
J. B. Dadachanjiand Naunit Lal for the appellant.
S. B. Jathar and Ratnaparkhi Anant Govind for the
respondents.
1954. March 23. The Judgment of the Court was delivered by
VENICATARAMA AYYAR J.
3
VENKATARAMA AYYAR J.-This appeal arises out of a suit for
partition instituted by the appellant in the Court of the
Civil Judge Senior Division, Bijapur. The relationship of
the parties will appear from the following genealogical
table:
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Ramchandra
:
:
-----------------------------------------------------------
: :
: :
Siddopant Krishnarao
alias Sadashiv (d. 1897)
(d.1899) m. Rukmini
: (D-6)
: :
Gundo m. Laxmibai (D-5) :
: :
: :
I Shrinivas
Devji m. Akkubai (D-4) (adopted son)
(adopted) plaintiff
d. 6-9-1935.
:
:
--------------------------------------
: : :
Narayan Raghavendra Gundo
D-1 D-2 D-3Siddopant and Krishnarao were members of a joint
undivided family. Krishnarao died in 1897 leaving behind a
widow, Rukminibai, who is the sixth defendant in the suit.
Siddopant died in 1899 leaving him surviving his son, Gundo,
who died in 1901 leaving behind a widow, Lakahmibai, who is
the fifth defendant. On 16th December, 1901, Lakshmibai
adopted Devji, who died on 6th May, 1935, leaving three
sons, defendants Nos. 1 to 3, and a widow, Akkubai, the
fourth defendant. On 26th April, 1944, Rukminibai adopted
the plaintiff, and on 29th June, 1944, he instituted the
present suit for partition claiming a half share in the
family properties.
Siddopant and Krishnarao represented one branch of a
Kulkarni family and were entitled for their share of theWatan lands, to the whole of S. No. 138 and a half share in
S. Nos. 133 and 136 in the village of Ukamnal and a half
share in S. Nos. 163, 164 and 168 in the village of
Katakanhalli. The other branch was represented by Swamirao,
who was entitled for his half share
4
of the Watan lands, to the whole of S. No. 137 and to a half
share in S.Nos. 133 and 136 in the village of Ukamnal and to
a half share in S. Nos. 163, 164 and 168 in the village of
Katakanhalli. Siddopint purchased a house under Exhibit D-
36 and lands under Exhibits D-61 and D-64, and constructed
two substantial houses. His grandson, Devji, also built a
house. All these properties are set out in Schedules A and
B to the plaint, A Schedule consisting of houses and house-sites and B Schedule of lands. It is the plaintiffs case
that these properties were either ancestral, or were
acquired with the aid of joint family funds. He accordingly
claims a half share in them as representing Krishnarao.
Swainirao died about 1903 issueless, and on the death of his
widow shortly thereafter, his properties devolved on Devji
as his nearest agnate, and they are set out in Schedule C to
the plaint. The plaintiff claims that by reason of his
adoption he has become a preferential heir entitled to
divest Devji of those properties, and sues to recover them
from his sons. -In the alternative, he claims a half share
in them on the ground that they had been blended with the
admitted Joint family properties.
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The defendants denied the truth and validity of the
plaintiffs adoption. They further contended that the only
ancestral properties belonging to the family were the Watan
lands in the villages of Ukamnal and Katakanhalli, that the
purchases made by Siddopant were his self-acquisitions, that
the suit houses were also built with his separate funds, and
that the plaintiff was not entitled to a share therein.
With reference to the properties in Schedule C, they pleaded
that the. plaintiff could not by reason of his adoption
divest Devji of the properties which had devolved on him as
heir. They denied that those properties had been blended
with the joint family properties.
Both the Courts below have held that the adoption of the
plaintiff is true and valid, and that question is no longer
in dispute before us. They have also held that the
purchases made by Siddopant and the houses built by him were
his self-acquisitions, as was also the house built by Devji.
The trial Court held that the
5
plaintiff was entitled to a half share in S. Nos. 639 and
640 in Schedule A on the ground that they belonged to the
family as ancestral properties; but the High Court held that
that had not been established. As regards the properties
set out in Schedule C, while the trial Court decided thatthe appellant was entitled to them exclusively under the
decision of the Privy Council in Anant Bhikappa Patil
(Minor) v. Shankar Ramchandra Patil(1), the High Court held
following a Full Bench decision of that Court in Jivaji
Annaji v. Hanmant Ramchandra(2), that they belonged
exclusively to Devji, and that the plaintiff could lay no
claim to them. Both the Courts a reed in negativing the
contention of the plaintiff that there had been a blending
of these properties with the joint family properties. In
the result, the High Court granted a decree in favour of the
plaintiff for partition of the admitted Watan ,lands, and
otherwise dismissed the suit. The present appeal is
preferred against this decision.
The first contention that has been urged on behalf of theappellant is that the finding of the Courts below that the
properties purchased by Siddopant and the houses constructed
by him and Devji were self-acquisitions, is erroneous,
firstly because the burden was wrongly cast on the plaintiff
of proving that they were made with the aid of joint family
funds, and secondly because certain documents which had been
tendered in evidence by the plaintiff had been wrongly
rejected as inadmissible. On the first question, the
argument of the appellant is that as the family admittedly
possessed income-producing nucleus in the ancestral Watan
lands of the extent of 56 acres, it must be presumed that
the acquisitions standing in the name of Siddopant were made
with the aid of joint family funds, that the burden lay on
the defendants who claimed that they were self-acquisitionsto establish that they were made without the aid of joint
family funds, that the evidence adduced by them fell far
short of it, and that the presumption in favour of the
plaintiff stood unrebutted. For deciding whether this
contention is well-founded, it is necessary to see
(1)70 I.A. 232.
(2) I.L.R. 195o Bom. 510.
6
what the findings of the Courts below are regarding the
extent of the ancestral properties, the income they were
yielding, the amounts that were invested by Siddopant in the
purchases and house constructions, and the other resources
that were available to him.
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On the question of the nucleus, the only properties which
were proved to belong to the joint family were the Watan
lands of the extent of about 56 acres, bearing an annual
assessment of Rs. 49. There is no satisfactory evidence
about the income which these lands were yielding at the
material period. Rukminibai, P.W. 6, and Akkubai, D.W. 1,
gave conflicting evidence on the point. But neither of them
could have had much of first-hand knowledge, as both of them
came into the family by marriage long after the nineties,
and were then very young. The lessee who cultivated the
lands of Swamirao, who owned, a share in the Watan lands
equal to that of Siddopant and Krishnarao, deposed that
the net income was Rs. 30 per annum. On a consideration of
the entire evidence, the trial Court put the annual income
at Rs. 150. On appeal, the learned Judges of the High Court
were also of the opinion that the income from the lands
could not have been considerable. They characterised the
oral evidence of P.W. 6 and D.W. I on the point as
worthless. They observed that the assessment of less than a
rupee per acre was an indication that the lands were of poor
quality. They referred to the fact that both the brothers
were obliged to go to the State of Hyderabad for earning
their livelihood, and that Krishnarao had been obliged to
borrow under Exhibits D-89 and D-90 even petty amounts likeRs. 26 and Rs. 10 on onerous terms, and they accordingly
concluded that the income from the lands could not have beep
sufficient even for maintenance.
Coming next to the acquisitions, on 21st May, 1871,
Siddopant purchased under Exhibit D-36 a house for Rs.200
from his mother-in-law. On 11th May,1885, he purchased
under Exhibit D-61 S. No. 23 Ukamnal village for a sum of
Rs. 475. On 23rd July, 1890, he purchased under Exhibit D-
64 lands bearing S. Nos. 2025 and 2140 for Rs. 2,400. In
this suit, we are concerned
7
only with S. No. 2025. Apart from these purchases, he
constructed two houses, one on S. Nos. 639, 640 and 641, and
another on S.Nos. 634 and 635. D.Ws. 2 and 3 have deposedthat these constructions would have cost between Rs. 20,000
and Rs. 25,000, and both the Courts have accepted this
evidence. It was argued for the appellant that these
witnesses had no first-hand knowledge of the constructions,
and that their evidence could not be accepted as accurate.
But making all allowances for inexactitude, there cannot be
any doubt that the buildings are of a substantial character.
After 1901, Devji built a house on S. Nos. 642, 644 and 645
at a cost estimated between Rs. 2,000 and 4,000. Thus, sums
amounting to about Rs. 30,000 had been invested in the
acquisition of these properties and construction of the
houses. Where did this money come from ? The evidence is
that Siddopant was a Tahsildar in the State of Hyderabad,
and was in service for a period of 40 years before heretired on pension. Though there is no precise evidence as
to what salary he was drawing, it could not have been
negligible, and salary is the least of the income which
Tahsildars generally make. The lower Courts came to the
conclusion that having regard to the smallness of the income
from the ancestral lands and the magnitude of the
acquisitions made, the former could not be held to be the
Foundation for the latter, and on the authority of the
decision of the Privy Council in Appalaswami v.
Suryanarayanamurti (1) held -that the initial burden which
lay on the plaintiff of establishing that the properties of
which a division was claimed were joint family properties
had not been discharged. The law was thus stated in that
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case:
" The Hindu law upon this aspect of the case is well
settled. Proof of the existence of a joint family does not
lead to the presumption that property held by any member of
the family is joint, and the burden rests upon anyone
asserting that any item of property was joint to establish
the fact. But where it is established that the family
possessed some joint property which from its nature and
relative value may have formed the nucleus from which the
property in question may
(1) I.L.R. 1948 Mad. 440 at 447, 448
8
have been acquired, the burden shifts to the party alleging
self-acquisition to establish affirmatively that the
property was acquired without the aid of the joint family
property: See Babubhai Girdharlal v. Ujamlal Hargovandas
(1), Venkataramayya v. Seshamma(2) Vythianatha v. Vdradaraja
(3)."
It is argued for the appellant that in that case the
father had obtained under the partition deed, Exhibit A,
properties of the value of Rs. 7,220, that he acquired
properties of the value of Rs. 55,000, and that never-
theless, it was observed by the Privy Council that " the
acquisition by the appellant of the property under ExhibitA, which as between him and his sons was joint family
property, cast upon the appellant (the father) the burden of
proving that the property which he possessed at the time of
the plaint was his self-acquired property "; and that
therefore on proof that there existed ancestral lands of the
extent of 56 acres, the burden was shifted on to the
defendants to establish self-acquisition.
Whether the evidence adduced by the p plaintiff was
sufficient to shift the burden which initially rested on
,him of establishing that there was adequate nucleus out of
which the acquisitions could have been made is one of fact
depending on the nature and the extent of the nucleus. The
important thing to consider is the income which the nucleus
yields. A building in the occupation of the members of afamily- and yielding no income could not be a nucleus out of
which acquisitions could be made, even though it might be
of considerable value. On the other hand, a running
business in which the capital invested is comparatively
small might conceivably product substantial income, which
may well form the foundation of the subsequent acquisitions.
These are not abstract questions of law, but questions of
fact to be determined on the evidence in the case. In
Appalaswami v. Suryanarayanamurti (4), the nucleus of Rs.
7,220 included 6/16th share in a rice mill and outstandings
of the value of Rs. 3,500, and as the acquisitions in
question were made during a period of
(1) I.L.R. 1937 Bom. 708.
(2) I.L.R. 1937 Mad. 1012,(3) I.L.R. 1038 Mad. 696.
(4) I.L.R. 1948 Mad. 440.
9
16 years it was possible that the joint family income might
have contributed therefor. But in the present case, the
finding of the Courts is that the income from the lands was
not sufficient even for the maintenance of the-members, and
on that they were right in holding that the plaintiff had
not discharged the initial burden which lay on him. But
even if we are to accept the contention of the appellant
that on proof of the existence of the Watan lands the burden
had shifted on to the defendants to prove that the
acquisitions were made without the aid of joint family
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funds, we must hold on the facts that that burden had been
discharged. In Appalaswami v. Suryanarayanamurti (1), in
holding that the father had discharged the burden of proving
that the acquisitions were his own, the Privy Council
observed:
"The evidence establishes that the property acquired by the
appellant under Exhibit A is substantially intact, and has
been kept distinct. The income derived from the property
and the small sum derived from the sale of part of it have
been properly applied towards the expenses of the family,
and there is no evidence from which it can be held that the
nucleus of joint family property assisted the appellant in
the acquisition of the properties specified in the schedule,
to the written statement."
Likewise, in the present -case all the ancestral Watan lands
are intact, and are available for partition, and the small
income derived from them must have been utilised for the
maintenance of the members of the family. Whether we hold,
as did the learned Judges of the High Court, that the
plaintiff had failed to discharge the burden which lay on
him of establishing sufficient nucleus, or that the
defendants had discharged the burden of establishing that
the acquisitions were made without the aid of joint family
funds, the result is the same. The contention of theappellant that the findings of the Courts below are based on
a mistaken view as to burden of proof and are in consequence
erroneous, must fail.
(1) I.L.R. 1948 Mad. 440.
10
It was, next contended that certain documents which were
tendered in evidence had been wrongly rejected by the Courts
below, and that the finding of self-acquisition reached
without reference to those documents should not be accepted.
These documents are judgments in two suits for maintenance
instituted by Rukminibai in the Sub-Court, Bijapur, C.S. No.
445 of 1903 and C.S. No. 177 of 1941 and in appeals
therefrom, C.A. No. 5 of 1905 and C.A. No. 39 of 1942
respectively in the District Court, Bijapur. Thesedocuments, were produced before the, trial Court on 17th
July, 1946, along with 28 other documents when the hearing
was about to commence and were rejected. On appeal, dealing
with the complaint of the plaintiff that these documents had
been wrongly rejected, the High, Court observed :
" Apart from the fact that these documents were produced at
a very late stage of the case............ these judgments
could have been admitted in evidence only if they could be
shown to be relevant under any of the sections 40 to 44 of
the Indian Evidence Act. None of these sections applied in
this case. The trial Judge was, therefore, right in not
admitting them in evidence."
The argument of the appellant is that these judgments are
admissible under section 13 of the Evidence Act as instancesin which there was an assertion that the suit properties
belonged to the joint family. For the respondents, it is
contended that the dispute between the parties in those
litigations was only about the quantum of maintenance to be
awarded, that no question of title to the properties was
directly involved, and that section 13 was inapplicable. We
are unable to accept this contention. The amount of
maintenance to be a warded would depend on the extent of the
joint family properties, and an issue was actually frame d
on that question. Moreover, there was a prayer that the
maintenance should be charged on the family properties, and
the same was granted. We are of opinion that the judgments
are admissible under section 13 of the Evidence Act as
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assertions of Rukminibai that the properties now in. dispute
belonged to the joint family.
11
But there is another difficulty in the way of the reception
of this evidence. It was contended by the respondents on
the basis of the observations in the judgment of the High
Court already extracted that the real ground of rejection
was that the documents were produced late. The order of the
trial Court rejecting the document has not been produced
before us. But there, is on the record a petition filed by
the plaintiff on 25th July, 1946, after the evidence was
closed and before arguments were addressed, for the
admission of the 32 documents rejected on 17th July, 1946,
and therein it is stated that "they have been rejected on
the ground of late production." The defendants endorsed on
this petition that if the documents were to be admitted at
that stage, an opportunity would have to be given to them to
adduce evidence and the trial would-have to be re-commenced;
and the prayer for admission of these documents was
accordingly opposed. The Court dismissed the petition. The
rejection of the documents was therefore clearly made under
Order XIII, rule 2, and there are no grounds for now setting
aside that order and reopening the whole case. This ground
of objection must therefore fail.Apart from the Watan lands which are admittedly ancestral,
and apart from the purchases made under Exhibits. D-36, D-
61 and D-64 and the houses which we have held to be self-
acquisitions, there are certain plots mentioned in Schedule
A in which the plaintiff claims a half share. These are the
sites on which the houses have been constructed. The
contention of the plaintiff is that they are ancestral
properties. The trial Court held that in the absence of a
title deed showing that the sites were acquired by members
of the family they must be held to be ancestral, and on that
ground, decreed to the plaintiff a half share in S. Nos. 639
and 640. The High Court reversed this decision observing
generally that the evidence relating to the house sites was
not clear, "when they were acquired or by whom", and that inthe absence of evidence showing that they formed part of
-the joint family properties, they must be held to be self
acquisitions. With respect, we are unable to agree with
this view. While it is not
12
unusual for a family to hold properties for generations
without a title deed, an acquisition by a member would
ordinarily be evidenced by a deed. When, therefore, a
property is found to have been in the possession of a family
from time immemorial, it is not unreasonable to presume that
it is ancestral and to throw the burden on the party
pleading self-acquisition to establish it.
It is necessary in this view to examine the evidence
relating to the several plots for which no title deeds havebeen produced. S. Nos. 634 and 635 form one block, on which
one of the houses has been constructed. The sanads relating
to them are Exhibits D-45 and D-46, and they merely recite
that the grantee was in occupation of the plots, and that
was confirmed. There is reference in them to a previous
patta granted by the Government. Exhibits 52 to 55 are
pattas showing that the properties comprised therein had
been acquired from the Government. If the identity of S.
Nos. 634 and 635 with the properties comprised in these
documents had been established, the plea that they are not
ancestral would have been made out. But that has not been
done, and the presumption in favour of their being ancestral
property stands unrebutted. The claim of the plaintiff to a
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half share therein must be allowed. S. Nos. 639, 640 and
641 form one block, on which there is another house
standing. There is no title deed for S. No. 639. Exhibit
D-47 is the sanad for S. No. 640, and it merely recognises
the previous occupation by the grantee, and that is
consistent with its character as ancestray property.
Exhibit D-48 is the sanad for S. No. 641 and is in the
same terms as Exhibits D-45 and D-46. The claim of the
plaintiff with reference to all these items must be upheld.
We have next S. Nos. 642, 644 and 645, on which Devji
constructed a house. The relative sanads are respectively
Exhibits D-49, D-50 and D-51. Their contents are similar to
those of Exhibits D-45 and D-46, and for the same reasons,
these plots must be held to belong to the joint family. We
have next S. No. 622 on which there stands a house. It is
clear from Exhibit D-43 that this was purchased by Devji at
a Government auction in the year 1909. The plaintiff can
lay -no claim to it. Then there is
13
S. No. 643. The oral evidence relating to this is that a
family temple stands on it. It cannot be partitioned. In
the result, it must be held that the plots, S. Nos. 634 and
635, S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and 645
are ancestral properties, and that the plaintiff is entitledto a half share therein. As substantial superstructures
have been put thereon, the appropriate relief to be granted
to the plaintiff is that he be given half the value of those
plots as on the date of the suit.
It remains to deal with the claim of the plaintiff for
possession of C Schedule properties on the ground that by
adoption he became the preferential heir of Swamirao and is
consequently entitled to divest Devji and his successors of
these properties. The contention of the appellant based on
the decision of the Privy Council in Anant Bhikappa Patil
(Minor) v. Shankar Ramchandra Patil (1) is that on adoption
the adopted son acquires all the rights of an aurasa son,
that these rights relate back to the date of the death of
the adoptive father, and that in consequence his right toshare in the joint family properties and to inherit from the
collaterals should both be worked out as from that date.
The contention of the respondents based on Jivaji Annaji v.
Hanmant Ramchandra (2) is that the doctrine of relation back
does not extend to properties which are inherited from a
collateral. The question thus raised is one of considerable
importance, and involves a decision as to the correctness of
the law as laid down in Anant Bhikappa Patil (Minor) v.
Shankar Ramchandra Patil (1).
Considering the question on principle, the ground on which
an adopted son is held entitled to take in defeasance of the
rights acquired prior to his adoption is that in the eye of
law his adoption relates back, by a legal fiction, to the
date of the death of his adoptive father, he being put inthe position of a posthumous son. As observed by Ameer Ali
J. in Pratapsing Shivsing v. Agarsingji Raisingji (3),
(1) 70 I.A. 232.
(2) I.L.R. 1950 Bom. 5IO
(3) 46 I.A. 97 at 107.
14
Again it is to be remembered that an adopted son is the
continuator of his adoptive fathers line exactly as an
aurasa son, and that an adoption, so far as the continuity
of the line is concerned, has a retrospective effect;
whenever the adoption may be made there is no hiatus in the
continuity of the line. In fact, as West and Buhler point
out in their learned treatise on Hindu Law, the Hindu
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lawyers do not regard the male line to be extinct or a Hindu
to have died without male issue until the death of the widow
renders the continuation of the-line by adoption
impossible."
It is on this principle that when a widow succeeds to her
husbands estate as heir and then makes an adoption, the
adopted son is held entitled, as preferential heir, to
divest her of the estate. It is on the same principle that
when a son dies unmarried and his mother succeeds to his
estate as his heir, and then makes an adoption to h er
husband, that adopted son is held entitled to divest her of
the estate. (Vide Vellanki Venkata v. Venkatarama(1) and
Verabhai v. Bhai Hiraba(2). The application of this
principle when the adoption was made to a deceased
coparcener raised questions of some difficulty. If a joint
family consisted of two brothers A and B, and A died leaving
a widow and the properties were taken by survivorship by B,
and then W took a boy X in adoption, the question was
whether the adopted son could claim a half share in the
estate to which A was entitled. It was answered in the
affirmative on the ground that his adoption -related back to
the date of the death of A. But suppose before W makes an
adoption, B dies leaving no son but a widow C and the estate
devolves on her, can W thereafter make an adoption so as toconfer any rights on X to the estate in the hands of C ? It
was held in Chandra v. Gojarabai(3) that the power to make
an adoption so as to confer a right on the adopted son could
be exercised only so long as the coparcenary of which the
adoptive father was a member subsisted, and that when the
last of the coparceners died and the properties thereafter
devolved on his
(1) 4 I.A. 1 (3) I.L.R. 14 Bom. 463.
(2) 30 I.A. 234.
15
heir, the coparcenary had ceased to exist, and that
therefore W could not adopt so as to divest the estate which
had vested in the heir of the last coparcener. In view of
the pronouncements of the Judicial Committee in PratapsingShivsing v. Agarsingji Raisingji(1) and Amarendra Mansingh
v. Sanatan Singh(2) that the validity of an adoption did not
depend on whether the adopted son could divest an estate
which had devolved by inheritance or not, a Fall Bench of
the Bombay High Court held in Balu Sakharam v. Lahoo
Sambhaji(3) that in such cases the adoption would be valid,
but that the estate which had devolved upon the heir could
not be divested. In Anant Bhikappa Patil (Minor) v. Shankar
Ramchandra Patil(4), the Privy Council dissented from this
view, and held that the coparcenary must be held to subsist
so long as there was in existence a widow of a coparcerier
capable of bringing a son into existence by adoption, and if
she made an adoption, the rights of the adopted son would be
the same as if he had been in existence at the time when hisadoptive father died, and that his title as coparcener would
prevail as against the title of any person claiming as heir
of the last coparcener. In substance, the estate in the
hands of such heir was treated as impressed with the
character of coparcenary property so long as there was a
widow alive who could make an adoption. This principle was
re-affirmed in Neelangouda Limbangouda v. Ujjan Gouda(5).
Thus far, the scope of the principle of relation back is
clear. It applies only when the claim made by the adopted
son relates to the -estate of his adoptive father. This
estate may be definite and ascertained as when he is the
sole and absolute owner of the properties, or it may be
fluctuating as when he is a member of a joint Hindu family,
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in which the interest of the coparceners is liable to
increase by death or decrease by birth. In either case, it
is the interest of the adoptive father which the adopted son
is declared entitled to take as on the date of his death.
The point for
(1) 46 I.A. 97. (4) 70 I.A. 232.
(2) 6o I.A. 242. (5) A.I.R. 1948 P.C. 165: 50 Bom.L.R. 682.
(3) I.L.R. 1937 BOM. 508.
16
determination now is whether this doctrine of relation back
can be applied when the claim made by the adopted son
relates not to the estate of his adoptive father but of a
collateral. The theory on which this doctrine is based is
that there should be no hiatus in, the continuity of the
line of the adoptive father. That, by its very nature, can
apply only to him and not to his collaterals. In the Oxford
Dictionary the word "collateral" is defined as meaning
"descended from the same stock but not in the same line."
The reason behind the rule that there should be continuity
in line does not warrant its extension to collaterals. Nor
is there any authority until we come to the decision in
Anant Bhikappa Patil (Minor) v.Shankar Ramchandra Patil(1),
which applied the theory of relation back to the properties
inherited from collaterals. With reference to them, thegoverning principle was that inheritance can never be in
abeyance, and that once it devolves on a person who is the
nearest heir under the law, it is thereafter not liable to
be divested. The law is thus stated in Mullas Hindu Law,
11th Edition, at pages 20 and 21 :
"On the death of a Hindu, the person who is then his nearest
heir becomes entitled at once to the property left by him.
The right of succession vests in him immediately on the
death of the owner of the property. It cannot under any
circumstances remain in abeyance in expectation of the birth
of a preferential heir where such heir was not conceived at
the time of the owners death.
"Where the estate of a Hindu has vested in a person who is
his nearest heir at the time of his death, it cannot bedivested except either by the birth of a preferable heir
such as a son or a daughter, who was conceived at the time
of his death, or by adoption in certain cases of a son to
the deceased."
In Bhubaneswari Debi v. Nilkomul Lahiri(2), the facts were
that Chandmoni, the widow of one Rammohun, died on 15th
June, 1867, and the estate ,devolved on his nephew, Nilkomul
as reversioner. Subsequently, Bhubaneswari Debi, the widow
of a
(1) 70 I.A. 232. (2) 12 I.A.137.
17
brother of Rammohun called Sibnath, took a boy, Jotindra, in
adoption, and the suit was by him for half a share in the
estate. If his adoption could relate back to the date ofdeath of Sibnath, which was on 28th May, 1861, Jotindra
would be entitled to share the inheritance equally with
Nilkomul. That was the argument put forward in support of
his claim. (Vide page 139)., In negativing this contention,
Sir Barnes Peacock observed:-
"According to the law as laid down in the decided cases, an
adoption after the death of a collateral does not entitle
the adopted son to come in as heir of the collateral.
It is true that reference is also made to the fact that the
boy adopted was not actually in existence on the date of the
death of Chandmoni ; but that, however, would make no
difference in the legal position, if the principle of
relation back was applicable. One of the cases which the
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Privy Council had in mind was Kally Prosonno Ghose v. Gocool
Chunder Mitter(1), which was relied on in the High Court.
Vide Nilkomul Lahuri v. Jotendro Mohan Lahuri(2). There, it
was hold that an adopted son could not claim the estate of
his adoptive fathers paternal uncle, which had devolved by
inheritance prior to his adoption. In 1888 Golapchandra
Sarkar Sastri observed in his Tagore Law Lectures on the Law
of Adoption:
"As regards collateral succession opening before, adoption,
it has been held that an adoption cannot relate back to the
death of the adoptive father so as to entitle the adopted
son to claim the estate of a collateral relation, succession
to which opened before his adoption." (Vide pages 413 and
414). The law was thus well settled that when succession to
the properties of a person other than an adoptive father was
involved, ,the principle applicable was not the rule of
relation back but the rule that inheritance once vested
could not be divested.
Before examining the decision in Anant Bhikappa Patil
(Minor) v. Shankar Ramchandra Patil(3), it is
(1) I.I..R. 2 Cal. 295.
(2) I.L.R. 7 Cal. 178.
(3) 70 I.A. 232.
318
necessary, to refer to the earlier pronouncements of the
PrivY Council on the question, which formed the basis of
that decision. In Pratap Sing Shivsing v. Agarsinqit
Raisingji(1) the question related to a jivai grant of the
village of Piperia which had been made by the Ruler of Gamph
to a junior member on condition, that in default of male
descendants it should revert to the thakur. The last
incumbent, Kaliansing, died issueless in October, 1903,
leaving him surviving his widow, Bai Devla. On 12th March,
1904, she adopted Pratapsing Shivsing. The thakur then sued
to recover possession of the village on the ground that the
adopted son was not a descendant contemplated by the grant,
and that the adoption was invalid, as it would divest him ofthe village which had vested in him in October, 1903. With
reference to the first contention, the Judicial Committee
observed that under the Hindu Law an adopted son was as much
a descendant as an aurasa son. On the second contention,
they held that the principles laid down in Raghunandha v.
Brozo Kishoro(2) and Bachoo Hurkisondas. Mankorebai(3) as
to divesting of joint family properties which had vested in
other persons were applicable, and that having regard to the
interval between the date of the death of Kaliansing and the
date of the adoption Pratapsing could be treated as a
posthumous son. It will be noticed that the thakur did not
claim to succeed to the village on the death of Kaliansing
as his heir but on the ground of reverter under the terms of
the grant, and no question of relation back of title withreference to the succession of a collaterals estate was
involved.
In Amarendra Mansingh v. Sanalan Singh(1), the question
arose with reference to an impartible zamindari known as
Dompara Rai in Orissa. The last of its holder, Raja
Bibhudendra, died on 10th December, 1922, unmarried, and by
reason of a family custom which excluded females from
succeeding to the Raj, a collateral Banamalai succeeded to
it. On 18th December, 1922, Indumati, the mother of
Bibhudendra, adopted Amarendra to her husband, Brajendra.
The question
(1) 46 I.A. 97. (3) 34 I.A. 107.
(2) 3 I.A. 154. (4) 60 1,A, 242,
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19
was whether by his adoption Amarendra could divest BanamaIai
of the estate. It was held by the Privy Council that the
validity of an adoption did not depend on whether an estate
could be divested or not, and that the point to be
considered was whether the power to adopt had come -to an
end by there having come into existence a son, who had
attained the full legal capacity to continue the line.
Applying these principles, the Judicial Committee decided
that the adoption was valid, and that Amarendra took the
estate as the preferential heir. It will be seen that in
this case no claim of the adopted son to succeed to a
collateral was involved, and no question arose as to how far
the theory of relation back could be invoked in support of
such a claim. The estate claimed was that of his adoptive
father, Brajendra, and if the adoption was at all valid, it
related back to the date of Brajendras death, and enabled
Amarendra to divest Banamalai. The point for determination
actually was whether by reason of Bibhudendra having lived
for about 20 years, the power of his mother to adopt to her
husband had come to an end. It may be noted that but for
the special custom which excluded women from inheriting,
Indumati would have succeeded Bibhudendra as mother, and an
adoption by her would divest her of the estate and vest itin Amarendra, and the case would be governed by the
decisions in Vellanki Venkata v. Venkatarama(1) and Verabhai
v. Bhai Hiraba(2). The only difference between these cases
and Amarendra Mansingh v. Sanatan Singh(3) was that on the
death of Bibhudendra his heir was not Indumati but
Banamalai. This decision might be taken at the most to be
an authority for the position that when an adoption is made
to A, the adopted son is entitled to recover the estate of A
not merely when it has vested in his widow who makes the-
adoption but also in any other heir of his. It is no
authority for the contention that he is entitled to recover
the estate of B which had vested in his heir prior to his
adoption to A.
Vijaysingji Chhatrasingji v. Shipsangji Bhim,,sangji(4) is acase similar to the one in Amarendra Mansingh v. Sanatan
Singh(3). The property concerned was
(1) 4 I. A. T. (3) 60 I.A. 242.
(2) 30 I.A. 234. (4) 62 I.A. 161,
20
an impartible estate. Chandrasangji who was one of the
holders of the estate died, and was succeeded by his son,
Chhatrasingji. Chhatrasingji was then given away in
adoption, and thereafter Bhimsa@gji, the. brother of
Chhatrasingji, succeed ed to the estate. Then the widow of
Chhatrasingji made an adoption, and the question was whether
the adopted son could divest the estate in the bands of
Bhimsangji. It was held that he could. Here again, there
was no question of collateral succession, the point fordecision being precisely the same as in Amarendra Mansingh
v. Sanatan Singh(1).
We next come to the decision in Anant Bhikappa Patil (Minor)
v. Shankar Ramchandra Patil(2). The facts of that case were
that one Bhikappa died in 1905, leaving him surviving his
widow, Gangabai, and an undivided son Keshav. In 1908
Narayan, the divided brother of Bhikappa died, and Keshav
succeeded to his properties as heir. In 1917 Keshav died
unmarried, and as the properties were Watan lands, they
devolved on a collateral, Shankar. In 1930 Gangabai adopted
Anant, and he sued Shankar to recover possession of the
properties as the adopted son of Bhikappa. The High Court
had held that as the joint family ceased to exist in 1917
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when-Keshav died, and as the properties had devolved on
Shankar as his heir, the adoption, though valid, could not
divest him of those properties. The Privy Council held that
the coparcenary must be taken to continue so long as there
was alive a widow of the deceased coparcener, and that
GaDgabais adoption had the effect of vesting the family
estate in Anant, even though it had descended on Shankar as
the heir of Keshav. The decision so far as it relates to
joint family properties calls for no comment. When once it
is held that the coparcenary subsists so long as there is a
widow of a coparcener alive, the conclusion must follow that
the adoption of Anant by Gangabai was valid and operated to
vest in him the joint family properties which had devolved
on Shankar. Then, there were the properties which Keshav
had inherited from Narayan , -which had also devolved on
Shankar as his
(1) 60 I-A, 242.
(2) 701 I.A. 232,
21
heir. With reference to them, the Privy Council observed :
" If the effect of an adoption by the mother of the last
male owner is to take his estate out of the hands of a
collateral of his who is more remote than a natural brother
would have been, and to constitute the adopted person thenext heir of the last male owner, no distinction can in this
respect be drawn between pro perty which had come to the
last male owner from his father and any other property which
he may have acquired."
On this reasoning, it was held that Anant was entitled also
to the properties inherited by Keshav from Narayan. Anant
Bhikappa Patil (Minor) v. Shankar Ram Chandra Patil(1) must,
in our opinion, be taken to decide that the doctrine of
relation back will apply not only as regards what was joint
family estate but also properties which had devolved by
inheritance from a collateral. Otherwise, it is impossible
to justify the conclusion that the personal properties of
Keshav which had vested in Shankar in 1917 would re-vest in
Anant even though he was adopted only in 1930. The questionarise how this decision is to be reconciled with the
principle laid down in Bhubaneswari Debi v. Nilkomul Lahiri
(2) that an adoption made subsequent to the death of a
collateral do-es not divest the inheritance which had vested
prior to that date. That that principle was not intended to
be departed from is clear from the following observations of
Sir George Raiikin:
" Neither the present case nor Amarendras case(3) brings
into question the rule of law considered in Bhuba neswari
Debi v. Nilkomul Lahiri(3) (of Kalidas Das v. Krishnachandra
Das(4))......... Their Lordships say nothing as to these
decisions which appear to apply only to cases of
inheritance "
Nor does the discussion in Anant Bhikappa Patil (Minor) v.Shankar Ramchandra Patil(1) throw much light on this matter.
Considerable emphasis is laid on the fact that a ooparcener
has only a fluctuating interest in the joint family
properties, that it may increase by death and decrease by
birth, and that such a qualified
(1) 70 I.A.232. (3) 60 I. A. 242.
(2) 12 I.A. 137. (4) 2 B.L.R. 103 F.B.
22
interest as that must carry with it the liability to be
divested by the introduction of a new coparcener by
adoption. This reasoning, however, is wholly inapplicable
to property which is not held in coparcenary, such as the
estate of a collateral devolving by inheritance. The
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judgment then refers to the decisions of the Board in
Amarendra Mansingh v. Sanatan Singh(1) and Vijaysingji
Chhatrasingji v. Shivsangji Bhimsangji(2), and it is
observed that the impartible estates which were concerned
therein were treated as separate property and not as joint
family property, a conclusion which does not settle the
question, because even on the footing that the estates were
separate properties, no question of collateral succession
was involved in them, the claim under litigation being in
respect of the estate of the adoptive father and covered by
the principle already established in Vellanki Venkata v.
Venkatarama (3) and Verabhai v. Bhai Hiraba (4). Then
follows the conclusion already quoted that no distinction
can be drawn between properties which come from the father
and properties which come from others. This is to ignore
the principle that the doctrine of relation back based on
the notion of continuity of line can apply and had been
applied, only to the estate of the adoptive father and not
of collaterals. We may now turn to Jivaji Annaji v. Hanmant
Ram. Chandra (5) wherein the scope of the decision in Anant
Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (6) came
up for consideration. There, the material facts were that
Keshav and Annappa who were members of a joint family
effected a partition, and thereafter, Annappa died in 1901,leaving behind a widow, Tungabai. Keshav died leaving
behind a son, Vishnu, who died in 1918 without male issue,
and the property being Watan lands devolved on a collateral
called Hanmant as his heir. In 1922 Tungabai adopted
Jivaji. The question was whether he was entitled to divest
the properties which had become vested in Hanmant as the
preferential heir of Vishnu, and the decision was that he
was not. It will be noticed that
(1)60 I.A. 242. (4) 30 I.A. 234.
(2) 62 I.A. 161. (5) I.L.R. 1950 Bom. 510.
(3) 4 I.A. 1. (6) 70 I.A. 232.
23
Annappa to whom the adoption was made had at the time of his
death become divided from his brother, and the principlesapplicable to adoption by a widow of a deceased coparcener
had therefore no application. It was a case in which the
adopted son laid a claim to properties, not on the ground
that they belonged to the joint family into which he had
been adopted but that they belonged to a collateral to whom
he was entitled to succeed as a preferential heir, and it
was sought to divest Hanmant of the properties which had
vested in him in 1918 on the strength of the decision in
Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1)
The contention was that if Anant could as adopted son divest
the personal properties of Keshav which had devolved on
Shankar as his preferential heir, Jivaji could also divest
the properties which had devolved on Hanmant as the
preferential heir of Vishnu. The learned Judges made nosecret of the fact that this contention received support
from the decision in Anant Bhikappa Patil (Minor) v. Shankar
Ramchandra Patil (1); but they were impressed by the fact
that the statement of the law in Bhubaneswari Debi v.
Nilkomul Lahiri (2) as to the rights of an adopted son quoad
the estate of a collateral had been reaffirmed, and they
accordingly held that the decision in Anant Bhikappa Patil
(Minor) v. Shankar Ramchandra Patil (1) did not intend to
alter the previous law that an adopted son could not divest
properties which had been inherited from a collateral prior
to the date of adoption. They distinguished the actual
decision on the ground that as Keshav had vested in him both
the ancestral properties as well as the properties inherited
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from Narayan, and as admittedly there was a relation back of
the rights of Anant in respect of the ancestral properties,
there should likewise be a relation back in respect of the
separate properties. But it is difficult to follow this
distinction. If under the law the rights of an adopted son
differ according as they relate to the estate of his
adoptive father or to property inherited from collaterals,
the fact that both classes of properties are held by the
same person can make no difference in the quality of those
rights. The position will
(1) 70 I.A. 232. (2) 12 1 A. 137.
24
be analogous to that of a coparcener who has also self-
acquisitions, in which case, the devolution by survivorship
of joint family properties does not affect the devolution by
inheritance of the separate properties.
The fact is, as frankly conceded by the learned Judges, they
were puzzled by the decision in Anant Bhikappa Patil (Minor)
v. Shankar Ramchandra Patil (1), and as it was an authority
binding on the Indian Courts, they could not refuse to
follow it, and were obliged to discover a distinction. This
Court, however, is not hampered by any such limitation, and
is free to consider the question on its own merits. In
deciding that an adopted son is entitled to divest theestate of a collateral, which had devolved by inheritance
prior to his adoption, Anant Bhikappa Patil (Minor) v.
Shankar Ramchandra Patil (1) went far beyond what had been
previously understood to be the law. It is not in
consonance with the principle well established in Indian
jurisprudence that an inheritance could not be in abeyance,
and that the relation back of the right of an adopted son is
only quoad the estate of the adoptive father. Moreover, the
law as laid down therein leads to results which are highly
inconvenient. When an adoption is made by a widow of either
a coparcener or a separated member, then the right of the
adopted son to claim properties as on the date of the death
of the adoptive father by reason of the theory of relation
back is subject to the limitation that alienations madeprior to the date of adoption are binding on him, if they
were for purposes binding on the estate. Thus, transferees
from limited owners, whether they be widows or coparceners
in a joint family, are amply protected. But no such
safeguard exists in respect of property inherited from a
collateral, because if the adopted son is entitled on the
theory of relation back to divest that property, the
position of the mesne holder would be that of an owner
possessing a title defeasible on adoption, and the result of
such adoption must be to extinguish that title and that of
all persons claiming under him. The alienees from him would
have no protection, as there could be no question of
supporting the alienations on the ground of necessity
(1) 70 I.A. 232.25
or benefit. And if the adoption takes place long after the
succession to the collateral had opened-in this case it was
41 years thereafter -and the property might have meanwhile
changed hands several times, the title of the purchasers
would be liable to be disturbed quite a long time after the
alienations. We must hesitate to subscribe to a view of the
law which leads to consequences so inconvenient. The claim
of the appellant to divest a vested estate rests on a legal
fiction, and legal fictions should not be extended so as to
lead to unjust results. We are of opinion that the decision
in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra
Patil(1) in so far as it relates to properties inherited
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from collaterals is not sound, and that in respect of such
properties the adopted son can lay no claim on the ground of
relation back. The decision of the High Court in respect of
C, Schedule properties must therefore be affirmed.
It was I finally contended that the defendants had blended C
Schedule properties along with the admitted ancestral
properties so as to impress them with the character of joint
family properties. The burden of proving blending is
heavily on the plaintiff. He has to establish that the
defendants had so dealt with the properties. as to show an
intention I to abandon their separate claim over it. This
is a question of fact on which the Courts below have
concurrently found against the appellant, and there are no
grounds for differing from them.
In the result, the decree of the lower Court will be
modified by granting the plaintiff a decree for half the
value of the plots, S. Nos. 634 and 635, S. Nos. 639, 640
and 641and S. Nos. 642, 644 and 645 as on the date of the
suit. Subject to this modification, the decree of the lower
Court is confirmed, and; the appeal is dismissed. In the
circumstances, the parties will bear their own costs in this
appeal.
Appeal dismissed.
(1) 70 I.A. 232.4
26
Recommended